Vemuri Hitlar Rao and Another vs Vemuri Jayaram Prasad

D.S.R. Varma, J.—Heard the learned Counsel appearing on behalf of the petitioners.

This Civil Revision Petition is directed against the order, dated 1 -8-2005, passed by the Senior Civil Judge, Avanigadda, allowing the application I.A. No. 320 of 2005 in O.S. No. 38 of 2005, filed under Order 26 Rule 9 of the CPC seeking appointment of an Advocate-Commissioner to note down the physical features of the suit schedule property and also to note down whether there is any boundary bund in between the plan submitted by the petitioner (plaintiff) and plaint schedule property in an extent of Ac. 2-28 cents.

The petitioners are defendants and respondent is plaintiff in the suit. The suit is filed for specific performance of an agreement of sale, dated 8-3-1991, and for permanent injunction.

For the sake of convenience, the parties will be referred to as per their array in the suit.

It is the contention of defendants that there was no agreement of sale, dated 8-3-1991, as alleged by the plaintiff and that the plaintiff was not in possession of plaint schedule property. Therefore, the situation is that the plaintiff as well as the defendants are claiming possession over the suit schedule property in their own way.

Perhaps, that is the reason why the plaintiff has filed the present application I.A. No. 320 of 2005 seeking appointment of an Advocate-Commissioner in order to establish his case that he has been in possession of the suit schedule property.

In the instant case, particularly in the light of the relief sought in the suit, it may perhaps be necessary to ascertain as to who is in possession of the suit schedule property.

No doubt, possession of the property has to be established by the party to a suit who pleads and asserts to be in possession thereof by letting in acceptable evidence before the Court. Either of the parties to a suit cannot be allowed to collect evidence in order to establish their respective pleadings through an Advocate-Commissioner. This is the general principle. But in certain circumstances, depending upon the facts and circumstances of a given case, if the Court feels it necessary, Advocate-Commissioner can be appointed.

The utility or otherwise of the report of the Advocate-Commissioner can always be put to challenge by both the parties, if necessary by cross-examining him with leave of Court. The report of the Advocate-Commissioner is not conclusive. Even the Court also suo motu can examine the Advocate-Commissioner, as provided under Order 26 Rule 10 of the Code of Civil Procedure, since the report of Advocate-Commissioner would form part of record.

Further more, in any eventuality, it is always open to defendants to challenge the present order also, u/s 105 of the CPC in case necessity arises for them to file an appeal as against the judgment and decree that may be passed in the suit ultimately.

This is not a fit case for exercising the jurisdiction of this Court under Article 227 of the Constitution of India.

For the foregoing reasons, the Civil Revision Petition is without any merit and is liable to be dismissed.

In the result, the Civil Revision Petition is dismissed, at the stage of admission. However, there shall be no order as to costs.